Legislative Director Update 10/15/18
A brief Legislative Director update below.
- DOL: The U.S. Department of Labor announced a public hearing on October 17 in Washington DC beginning at 10:00 a.m. to address the Obama-era rule expanding overtime eligibility under the FLSA. Alexander Acosta has indicated that he is open to raising the threshold and, previously, has suggested an inflation-adjusted threshold would put the salary basis at approximately $33,000. As you may recall, in August the Department of Labor announced a series of public listening sessions on this rule. The public hearing will take place this week and we will continue to keep you updated on any developments.
- Disability Leave Management: As employers struggle with managing how much leave is required as an accommodation under the ADA, we are beginning to get more direction from the Courts to guide those decisions. In Easter v. Arkansas Children’s Hospital (E.D. Ark. October 3, 2018) an employee was unable to work after exhausting her FMLA leave but she had an appointment to be evaluated by a specialist less than a month later. The employer denied the additional leave and terminated her employment. The Court held there was no violation of the ADA. While the Court agreed with the employer in this case, these situations are very fact specific and employers must continue to proceed with caution. To read more about this good decision, please read here: Link
- NLRB: President Donald Trump nominated Mark Gaston Pearce for a third term on the National Labor Relations Board (NLRB). Pearce’s nomination came despite widespread criticism from Republicans and business groups who viewed Pearce as having taken an anti-business approach on many issues before the Board. It appears the nomination may have been part of a deal in which the Senate agreed to confirm Pearce in exchange for confirmation of a number of Trump appointees to positions in other agencies. If confirmed by the Senate, Pearce and Member Lauren McFerran will maintain the two-seat Democratic minority on the five-member Board.
- NLRB: On September 14, the NLRB published a proposed rule that would change the standard for determining joint-employer status under the NLRA. Under the Board’s proposed rule, joint-employer status would be found only where two entities actually share or codetermine employees’ essential terms and conditions of employment, such as hiring, firing, discipline, supervision, and direction. An employer would have to possess and actually exercise substantial direct and immediate control over the essential terms and conditions of employment of another entity’s employees in a manner that is not limited and routine. If implemented, the rule would reinstate the traditional joint-employer standard the Board abandoned in its Browning-Ferris decision, 362 NLRB No. 186 (2015). In that case, the Board held that indirect control, or even the unexercised right to control, may be sufficient to establish a joint-employer relationship. The Board invited the public to submit comments on the proposed rule by November 13, 2018. You can read more here.
- EEO: While most of you may not have employees in New York, I thought it would be helpful to see the Final Guidance from New York State regarding combatting sexual harassment in the workplace. The State of NY issued final guidance on combating sexual harassment in the workplace. This includes updated guidance on the mandatory sexual harassment prevention policies and annual employee training applicable to employers in NY beginning earlier this month on October 9, 2018. The updated final guidance and other resources, including a model policy, model training materials and a Toolkit for employers. This may be helpful to compare to your policies and took kits as a reference point. Some employers are modeling their policies and practices after the most stringent state law in order to elevate their policies and practices. You can obtain the information here. Currently, there are 5 states that have mandatory training on sexual harassment in the workplace. There are an additional 7 states that currently have pending legislation.
- Nebraska Unicameral: The 106th Nebraska Unicameral Legislature commences on January 9, 2019 with an anticipated Sine Die adjournment on June 6, 2019. We will provide additional information as we get closer to commencement. We anticipate similar HR related bills seen in recent years including mandatory paid sick leave, ban the box legislation, medical marijuana legislation, numerous workers’ compensation bills and much more.
- Miscellaneous: As early as Wednesday of this week, the Trump administration may release their regulatory agenda. This agenda will likely provide insight into the much anticipated overtime rule, joint employer rule, labor finances and much more. We will continue to keep you updated when the regulatory agenda is released.